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CQ Group Australia Pty Ltd v Isaac Regional Council QPEC 3
PLANNING & ENVIRONMENT COURTOF QUEENSLAND
CQ Group Australia Pty Ltd v Isaac Regional Council  QPEC 003
CQ GROUP AUSTRALIA PTY LTD(appellant)
ISAAC REGIONAL COUNCIL
Planning & Environment Court
Application in pending proceeding
Planning & Environment Court at Brisbane
2 February 2015 delivered ex tempore
2 February 2015
ENVIRONMENT AND PLANNING – PUBLIC NOTIFICATION - where the respondent seeks that the appellant’s appeal be struck out on the basis that the appellant has failed to comply with the public notification requirements – whether the description “ancillary facilities” was sufficient
Sustainable Planning Act 2009 (Qld) ss 294, 297, 299, 762.
Sustainable Planning Regulation 2009 (Qld) r 16.
Curran & Ors v BCC & Ors  QPELR 58, applied
Rathera Pty Ltd v Gold Coast City Council (2000) 115 LGERA 348, applied
S & L Developments v Maroochy Shire Council (2008) 161 LGERA 331, applied
Zappala Family Co v Brisbane City Council (2014) 201 LGERA 82, considered
M A Williamson for the appellant
S M Ure for the respondent
Corrs Chambers Westgarth for the appellant
King & Co Solicitors for the respondent
- This is an application brought by the respondent. It seeks that the appellant's appeal be struck out on the basis that the appellant has failed to comply with the public notification requirements of the Sustainable Planning Act 2009 ("SPA").
- In particular, the respondent asserts that the description of the proposed development on the signs erected on the subject land and in the newspaper advertisement namely:
"From: Extractive Industry (up to 50,000 t per year), General Industry (Heavy Vehicle Depot & Ancillary Motor Vehicle Workshop & Ancillary Office Building) & Rural.
To: Extractive Industry (up to 1,000,000t per year) & Ancillary Facilities, General Industry (Heavy Vehicle Depot & Ancillary Motor Vehicle Workshop & Ancillary Office Building) & Rural."
did not properly describe the proposed development and proposed use of the land. It asserts it did not include an indication of the scale and density of the proposed development and it was misleading in that it failed to describe the "Ancillary Facilities" which in fact was a reference to workers' accommodation for up to 30 staff.
- The proposed development is situated on the Peak Downs Highway approximately three kilometres north of the town of Nebo. The appeal is solely concerned with the decision of the respondent to refuse the workers' accommodation component of the proposed development.
- The Notification stage of IDAS is set out in Chapter 6, Part 4, of SPA. Relevantly, s 294 identifies the purpose of the notification stage as giving a person:
“(a) the opportunity to make submissions, including objections, that must be taken into account before an application is decided: and
(b) the opportunity to secure the right to appeal to the court about the assessment manager's decision.”
- Section 297 describes the steps that must be carried out in order to give public notification of an application. Relevantly it includes obligations to:
(a) publish a notice at least once in a newspaper circulating generally in the locality of the land; and
(b) place a notice on the land in the way prescribed under a Regulation; and
(c) give notice to the owners of all land adjoining the land.”
- It is the adequacy of the notice in the newspaper circulating generally in the locality of the land and the notice on the land which are the subject of this application.
- Section 299 of SPA describes the requirements for particular notices and states that they "must be in the approved form". Schedule 3 defines the "approved form" as meaning a form approved by the Chief Executive under s 762 of SPA. Section 762 provides that the Chief Executive may approve forms for use under SPA and that the following forms have been approved for the purposes set out in s 297.
- Form 4 applies to a public notice on a sign on the land, and form 5 applies to a public notice advertisement for a newspaper and for adjoining land owners. Form 4 requires the notifier to:
“Insert the proposed use (if a new or changed use is proposed) or the proposed development, including an indication of the scale or density of the development (eg number of lots, gross floor area) using the use you will find in the planning scheme.”
- Form 5 requires the notifier to:
“Insert a brief description of the proposed use (if a new or changed use is proposed) or the proposed development, including an indication of the scale or density of the development (eg number of lots, gross floor area) using the definitions in the planning scheme...”
- Section 16 of the Sustainable Planning Regulation 2009 ("SPR") also prescribes the requirements for placing public notices on land, and relevantly contains specific requirements as to the size of the sign and its legibility.
- In both the sign erected on the land and the notice placed in the newspaper, the proposed development was described in the manner set out above. The workers' accommodation component of the proposed development is not clearly stated to be a component of the proposed development in the public notification. It does not fall within the definition of "Extractive industry" in the Nebo Shire Plan 2008, which is the planning scheme of the respondent. Therein Extractive industry is defined as:
“A use of premises for the extraction or quarrying of gravel, rock, sand, soil, stone or other similar materials. The term includes any treatment, crushing, screening or processing of materials or manufacturing of related products when carried out on the same premises.”
- There is no reference to the term "ancillary" in the definition of Extractive industry and there is no residential use component either. There is nothing in the definition itself which would suggest that any form of workers' accommodation might be expected to form part of this use. Furthermore, the term "ancillary facilities" is not a use definition in the planning scheme.
- Section 1.3 of the planning scheme provides that the definitions in Part 7 "define particular words used in the Nebo Shire Plan" as either "defined uses and use classes" or "administrative terms". Furthermore, it is stated that:
“Use definitions have a specific meaning for the purpose of the assessment category tables, and the administrative terms are those terms used in the planning scheme but do not have any specific use meaning.”
- In Section 7.1.1 of the planning scheme, there are residential use definitions including "Accommodation Units" and "Works Camp". Workers' accommodation, as proposed by the appellant, could arguably fall within either of these use definitions. It is submitted by the appellant, however, that it is, in the circumstances, an innominate use pursuant to the planning scheme.
- Significantly in SPA "use" is defined in Schedule 3 as including any use which is not only incidental to, but also necessarily associated with the use of the premises in question. It has not been demonstrated that workers' accommodation is necessarily associated with the use of the premises for Extractive industry.
- The sufficiency of public notification of development applications has been the subject of judicial guidance on many occasions. In Rathera Pty Ltd v Gold Coast City Council (2000) 115 LGERA 348, the Court of Appeal observed in the context of materially the same regime pursuant to the Integrated Planning Act 1997, per Jones J at 353:
“The purpose of S 3.2.1 and the role of the application form itself must therefore be seen as part of this detailed and complex procedure which precedes a local authority making a decision on a development proposal. The first step is the lodgement of the application. Only when the assessment manager is satisfied that adequate information about the proposal has been supplied, including the assessment of any referral agency, does the IDAS process proceed to the next stage.
That information and referral stage requires the applicant or the assessment manager to give notice of the development to the public and to the owners of all lands adjoining the subject land. This notice then supplies the basic information to interested persons as to the land where the identified development is to take place, how to obtain details of the proposal and the time within which submissions about the proposal must be made.
In form, the application itself is little more than a broad record of the parties, property and type of development. But by the end of the information and referral stage the assessment manager ought to know in precise detail what the development proposal entails. This information comes, not so much from the application form, but from accompanying documents, from requests for further information and from the assessment of referral agencies.
For members of the public or the adjoining land owners the place at which the precise details of the proposed development is to be obtained is not the public notification - be it by newspaper advertisement or by notice board - but rather at the local authority office which is identified in the advertisements along with the time within which submissions would need to be made.”
- In Curran & Ors v BCC & Ors  QPELR 58 at 61 Skoien DCJ applied the principles set out above noting:
“Of course the facts of each particular case will determine whether the description in the notification is sufficient to delineate the nature of the proposal so that an interested person will be put on notice and moved to search the actual application.”
- In S & L Developments v Maroochy Shire Council (2008) 161 LGERA 331 the Court of Appeal observed at 341:
“It was therefore open to the primary judge to conclude that the notice complied with IPA because ... the notice was sufficient to delineate the nature of the proposal so that an interested person would be put on notice and moved to search the Council's files.”
- The appellant concedes that the key issue for determination in this application is how the proposed use of workers' accommodation was described and whether it was sufficient in the circumstances. To put it another way, was the description sufficient to delineate the nature of this particular proposed use so that an interested person would be put on notice and moved to search the respondent’s files.
- The appellant submits that the public notification was adequate because it was entitled to choose an innominate use to best categorise the workers' accommodation component of the proposed development, applying the decision of the Court of Appeal in Zappala Family Co v Brisbane City Council (2014) 201 LGERA 82 at 103 and that "ancillary facilities" was sufficient in the circumstances.
- It is submitted that the plan accompanying the sign on the land contained a reference to workers' accommodation, albeit in print smaller than that contemplated by s 16 of the SPR, and that this proposed use was specifically referred to in the development application which could be inspected at the respondent's offices by any interested party. The appellant's submission ignores the complete absence of this information from the notice published in the newspaper. It is also difficult to discern the reference to workers' accommodation relative to the balance of the signage placed on the land. My finding in this regard is supported by the evidence of Mr Osborn who operates an underutilised workers' accommodation facility nearby which is currently only operating with an occupancy rate of 10 per cent. He was made aware of the proposed development as a consequence of the sign being placed on the land, but remained unaware of the accommodation component of the proposed use.
- I find that the public notification failed to contain a description of the contentious use which was sufficient to convey the workers' accommodation component of the proposed development such that an interested person would be put on notice and moved to search the development application at the respondent's offices.
- I declare that the appellant has failed to comply with the public notification requirements of SPA and that the court has no jurisdiction to entertain the appeal. It is submitted by the appellant that in the circumstances I ought exercise my discretion not to strike out the appeal; however, the conduct of the appellant in failing both in the development application and also in response to an information request to candidly disclose the true nature and extent of the workers' accommodation proposed as part of the development is such that I decline to exercise my discretion in this manner. I strike out the appeal.
- Published Case Name:
CQ Group Australia Pty Ltd v Isaac Regional Council
- Shortened Case Name:
CQ Group Australia Pty Ltd v Isaac Regional Council
 QPEC 3
02 Feb 2015